Card Range To Study

20 Cards in this Set

Defendant must engage in harmful or offensive contact with the plaintiff's person.

Tort of Assault

Defendant must put the plaintiff in apprehension (knowledge, awareness or understanding) of an immediate battery.
Mere words lack immediacy.
Words may negate immediacy.

Tort of False Imprisonment

Defendant must commit an act of restraint resulting in the confinement of the plaintiff in a bounded area.
Plaintiff must know of the confinement or be harmed by it.
Exclusion from a space is not false imprisonment.
An area is not bounded if htere is a reasonable means of escape.

Tort of Intentional Infliction of Emotional Distress

Defendant must engage in ourtrageous conduct (conduct that exceeds bounds of decency) resulting in the plaintiff suffering severe distress.
If plaintiff is hypersensitive, defendant must know in advance and deliberately target the sensitivity.

Tort of Trespass to Land

Defendant must commit an act of physical invasion (entry or propelling a tangible object) of land (including air above and soil below).

Defendant must intentionally interfere (take away or cause substantial harm) with plaintiff's personal property.
Plaintiff entitled to the full market value of the property.
A BFP of stolen property is not a converter.

Tort Defense of Consent

Plaintiff must have capacity to validly consent.
Express consent through words spoken or written giving the defendant permission to behave in the challenged way.
Consent may be implied from custom or usage or defendant's reasonable interpretation of plaintiff's overt conduct.
Defendant may not exceed the scope of plaintiff's consent.

Tort Defense: The Protective Privileges

Self-defense, defense of others and the defense of property.
Defendant must have a reasonable belief that a tort is imminent or in progress and may use the force necessary for the circumstances.
Deadly force may not be used to protect property.
In NY, before using deadly force, defendant must retreat if safe to do so, unless defendant is in his home, is a police officer or if used against the commission of a rape or robbery.

Tort Defense of Public Necessity

A defendant in an emergency may invade and damage plaintiff's property to protect the community or a significant group of people.

Tort Defense of Private Necessity

A defendant may invade plaintiff's property in an emergency to protect an interest of his own.
Defendant is liable for actual damages done to plaintiff's property, but not nominal or punitive damages.
The defendant has a right to sanctuary: the plaintiff may not eject the defendant as long as the emergency continues.

Defamation

The defendant must make a defamatory statement (one that adversely effects the plaintiff's reputation) that specifically identifies the plaintiff.
The defendant must publish the statement, that is, reveal it to at least one other person.
Proof of concrete harm is not necessary for libel (written defamation) or slander per se (statements concerning plaintiff's business or profession, his committing a crime of moral turpitude, imputing chastity to a woman, suffering from a loathsome disease, or in NY, homosexuality).

Defenses to Defamation

1. Express or implied consent.
2. Truth.
3. Absolute privileges arising on the basis of the identity of the speaker (spouses or statements made in open court)
4. Qualified privileges based on the purpose of the speech where there is a public interest in promoting candor.

First Amendment Defamation

Defendant's speech or writing is a matter of public concern.
Defendant must act with malice against public figures or negligence against private figure.
Plaintiff must prove the statement was false and that the defendant made the statement with the required fault.

Tort of Fraud

The defendant must intentionally or recklessly make an affirmative misrepresentation of fact in order to induce the reliance of the plaintiff and the plaintiff is damaged due to such reliance.

The defendant, aware of a valid contract between the plaintiff and a 3rd party, persuades the 3rd party to repudiate the contract.
Privilege (special relationship with one of the contracting parties) is a defense.

Negligence: Requirements

1. A duty of care,
2. Breach of that duty,
3. Which is the proximate cause,
4. Of plaintiff's damages.

Negligence: Standard of Care

Defendant owes a duty of care to foreseeable victims of his actions.
Defendant must act like a reasonably prudent person under similar circumstances would act.

Negligence: Standard of Care Superior Skill or Knowledge

If the defendant possesses superior skill or knowledge, the standard of a reasonably prudent person with that skill or knowledge.